Brown v. Emerson

• Decision Date: 26 April 1943
• Docket Number: 4-7052
• Citation: 170 S.W.2d 1019,205 Ark. 735
• Parties: BROWN v. EMERSON
• Court: Arkansas Supreme Court

170 S.W.2d 1019

205 Ark. 735

BROWN v. EMERSON

4-7052

Supreme Court of Arkansas

April 26, 1943

Appeal from Garland Probate Court; Sam W. Garratt, Judge; reversed.

Decree reversed and remanded.

Murphy & Wood, for appellant.

C. A Stanfield, for appellee.

HOLT J. MCFADDIN, J., dissenting.

OPINION

HOLT, J.

Mrs Lillie A. Brown died testate February 9, 1942. She left as sole survivor a son, I. G. Brown, 26 years of age, appellant here. Green Brown, the husband of Mrs. Brown, from whom she had been divorced, died in 1939.

Under the terms of her will, Mrs. Brown, after directing payment of debts, bequeathed to her son and Ina Marjorie Brown, her son's wife, certain personal effects, along with the furnishings in her apartment. In addition, the will contains these provisions: "Fourth: I devise and bequeath to my son, I. G. Brown, for his life only, the real estate situated at 1020, 1020 1/2, and 1022 Central Avenue, Hot Springs, Arkansas, with remainder, at his (I. G.'s) death going to my brother, Clyde Emerson, and his heirs in fee simple. While I hope for my son a long and happy life, I realize the uncertainties of life and make this conditional provision for my dear brother, who was left motherless at the age of four, and my being unable to do anything for him has caused me much sadness. Fifth: Residue to I. G. Brown."

The personal property which Mrs. Brown bequeathed to her son and his wife was of the value of approximately $ 600, and the real property which she devised to her son for life, with remainder to Clyde Emerson, was of the approximate value of $ 35,000.

Appellee, Emerson, was one of Mrs. Brown's four brothers.

Appellant sought to prevent the probate of his mother's will on the ground of lack of testamentary capacity and undue influence. Upon a trial of these issues the trial court found against appellant's contentions, upheld the will and from the decree comes this appeal.

The case comes before us for trial de novo, and unless we can say that the decree of the lower court is not supported by a preponderance of the testimony, it will be our duty to affirm it. After carefully weighing and analyzing all of the testimony presented in this record, we think the clear preponderance of the testimony supports both of appellant's contentions, and that the learned chancellor erred in holding otherwise.

We consider the questions of testamentary capacity and undue influence together, they being so interwoven. In Phillips v. Jones, 179 Ark. 877, 18 S.W.2d 352, this court held (headnote 3): "Questions of testamentary capacity and undue influence are so interwoven in any case of will contest that the court necessarily considers them together."

There are certain well-defined principles of law to guide us in determining the issues presented. In the Jones case, supra, this court said: "Where the mind of the testator is strong and alert the facts constituting the undue influence would be required to be far stronger in their tendency to influence the mind unduly than in another, where the mind of the testator was impaired, either by some inherent defect or by the consequences of disease or advancing age. It is clear that feeble intellect will not be of itself sufficient to establish lack of testamentary capacity, for that condition must be so great as to render the testator incapable of appreciating the nature and consequences of his act; but this feebleness may be inferred when, from the facts in proof, it is apparent that he was incapable of appreciating the deserts and relations of those whom he excludes from participating in his estate, although he might have had the ability to retain in memory, without prompting, the extent and condition of his property, and to comprehend to whom he was giving it. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405; Mason v. Bowen, 122 Ark. 407, 183 S.W. 973, Ann. Cas. 1917D, 713."

In determining testamentary capacity a wide range of inquiry is permissible into all facts and circumstances. Tobin v. Jenkins, 29 Ark. 151; Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405; Hyatt v. Wroten, 184 Ark. 847, 43 S.W.2d 726. In Hyatt v. Wroten this court said: "Undue influence is generally difficult of direct proof. It is generally exercised in secret, not openly, and like a snake crawling upon a rock, it leaves no track behind it; but its sinister and insidious effect must be determined from facts and circumstances surrounding the testator, his physical and mental condition as shown by the evidence, and the opportunity of the beneficiary of the influenced bequest to mould the mind of the testator to suit his or her purposes," and in the opinion there is cited with approval the case of Newman v. Smith, 77 Fla. 633, 82 So. 236, and it is there said: "It (the will) was in derogation of public policy as announced in the statutes of descent. It did violence to the dictates of natural affection, it repudiated his former protestations of love, it broke promises iterated and reiterated. Undue influence can seldom, if ever, be established by direct evidence, but we often find it conclusively shown by its results. . . . We do not mean to say that a will should be disturbed merely because it is unreasonable and unjust; but where it does violence to the natural instinct of the heart, to the dictates of fatherly affection, to natural justice, to solemn promises, to moral duty, such unexplained inequity and unreasonableness is entitled to great influence in considering the question of testamentary capacity and undue influence." "If the provisions of the will are unjust, unreasonable and unnatural, the court may consider that fact as a circumstance in determining the mental capacity of the testator." Howell v. Miller, 173 Ark. 527, 292 S.W. 1005.

And in Page on Wills, § 858, the textwriter says: "The weight of the evidence of an unnatural disposition depends in part on the extent to which injustice and violation of natural duty is carried. It is of great weight, when violation of natural duty is extreme." In 68 Corpus Juris, the textwriter, under the subject of wills, § 470, p. 790, says: "In determining the weight that should be given an unnatural disposition of the testator's property circumstances surrounding the execution of the will should be considered. Such disposition may be an important circumstance when considered with other evidence of undue influence, and it has been held that, where a disposition is unaccountably unnatural, less evidence is required to establish undue influence."

With these rules of law in mind we proceed to an examination of the testimony presented. At the very threshold we are confronted with an unnatural will, a will in which a mother would take away from her own flesh and blood, her only child, to whom her property would naturally descend, real property of the value of more than $ 35,000, and without any provision for possible issue of this 26-year-old son, devise this property to a brother who was at the time forty-years of age and a successful business man.

Mrs Brown, the testatrix, prior to the time that she became incapacitated, due to the inroads of a cancer, was a shrewd business woman. By their joint efforts, she and her husband, Green Brown, had accumulated the property involved here. During Green Brown's lifetime it was...